People v. Smith

• Decision Date: 17 March 1998
• Docket Number: Docket No. 103833,No. 4,4
• Citation: 456 Mich. 543,581 N.W.2d 654
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Donnell SMITH, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 654

581 N.W.2d 654

456 Mich. 543

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Donnell SMITH, Defendant-Appellant.

Docket No. 103833.

Calendar No. 4.

Supreme Court of Michigan.

Argued Oct. 9, 1997.

Decided March 17, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the People.

State Appellate Defender (by Richard B. Ginsberg) for the defendant.

William Forsyth, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research Training and Appeals, amicus curiae for Prosecuting Attorneys Association of Michigan.

Opinion

WEAVER, Justice.

We granted leave in this case to determine whether a hearsay statement, made approximately ten hours after an event, was properly admitted under MRE 803(2) as an excited utterance. Further, we address whether defendant was denied the effective assistance of counsel because his attorney was charged with a felony pending in the same county. We hold that the hearsay statement was admissible as an excited utterance and that defendant was not denied effective assistance of counsel. The defendant's conviction and sentence are affirmed.

I

The complainant was a sixteen-year-old high school sophomore when he joined the gym where he met defendant. Complainant joined the gym to improve his chances of making the varsity baseball team. Defendant was a thirty-one-year-old bodybuilder, from whom others, including complainant, sought weightlifting advice. At some point, defendant and complainant exchanged telephone numbers. Complainant testified that, at that time, defendant had told him that he "expected" complainant to call him. Shortly thereafter, in January 1991, complainant telephoned the defendant to invite him out for a movie and pizza. Defendant picked the complainant up and then picked up defendant's roommate to join them. Defendant testified that he and his roommate had been in a homosexual relationship for two years. That evening, the conversation revolved around baseball and bodybuilding. Complainant testified that he did not understand why defendant's roommate had come along.

One week later, complainant called defendant to ask if defendant wanted to go bowling. Defendant suggested they watch a movie at defendant's house instead. Defendant again picked complainant up and they returned to defendant's house. Complainant testified that while watching the movie defendant said that he found complainant interesting and asked complainant if he was open-minded. Sometime later defendant asked him, "What do you think about getting your dick sucked?" Complainant responded, "I'm not funny, if that's what you mean."

Soon thereafter, two women stopped by for directions to a party. Defendant led them by car to the party with complainant in the front passenger seat. Complainant testified to a growing uneasiness. In response to this uneasiness, defendant said he would take complainant home. Defendant briefly went into the party and came out with a man whom he drove to the store for more beer. When complainant attempted to move to the backseat of the car, defendant said to him, "You don't have to take the backseat for nobody." After going to the store, the three went back to the party, where defendant and complainant stayed for a brief time. After leaving the party, defendant took complainant back to defendant's house.

Upon return to defendant's house, complainant testified that defendant offered to involve him in a business venture if complainant would allow defendant to perform fellatio on him. Complainant testified that he told defendant that the proposition was "sick." Complainant testified that at this point the defendant got very angry, that the defendant would not allow him to leave, and that the options offered by defendant became increasingly violent. Complainant testified further that defendant told him to leave and then would not allow him to go, and that complainant became increasingly frightened. Defendant then promised to take complainant home after defendant smoked a joint, but instead of taking him home at that point, defendant offered complainant other choices. Defendant gave the complainant the choice between fighting defendant, who outsized complainant by eight inches and one hundred pounds, or allowing defendant to perform fellatio on him. When complainant asked to use the telephone, defendant said, "You're just going to call your mom.... I'll just beat her up. I'll beat up whoever comes over, or I'll just call my friends to beat them up." Complainant testified that defendant then pushed him and hit him in the chest and leg.

At that point, a group of people came to the door and defendant told complainant to be quiet because they had guns. After the people left, complaintant testified that defendant gave him another option: either let defendant perform fellatio or he would give him over to the people who were coming by again later and who were "sicker" than defendant and into "S & M." Complainant testified that defendant then held scissors to his neck to force compliance with defendant's request. When complainant assented, defendant first told him that he was not gay and would take complainant home. But minutes later, defendant reiterated his threat. Again, complainant assented and defendant told him that he would stop on complainant's request. Defendant then performed fellatio on complainant. After about one minute, and at complainant's request, defendant stopped.

Although defendant testified that there was a conversation regarding open-mindedness and his homosexuality, he denied that he became violent or forced complainant to allow him to perform fellatio. He denied any sexual contact with complainant.

The defendant then drove the complainant home at approximately 1:45 in the morning. Complainant's mother testified that she came to the door when complainant returned home because he was having a difficult time getting the door unlocked. She inquired if anything was wrong and testified that his response was, "Oh, mom, leave me alone." She observed that complainant seemed tearful and emotional. Without answering his mother's second inquiry, complainant abruptly left the room and took a bath with the water running continually for approximately one hour. The mother observed complainant pacing the floor and punching his hand into his fist. She testified further that at approximately 5:30 a.m., complainant was uncharacteristically sleeping on the livingroom couch, though his bedroom was adjacent to the livingroom, and that his eyelashes appeared wet.

[456 Mich. 549] At 11 o'clock the next morning complainant awoke. He testified that he asked his father for a weightlifting bench, and that his father responded, "Maybe later." Later he asked his mother, who said she would buy him a bench for his birthday in June. His mother testified that at that moment complainant stated, "Mom, I can't wait that long," and started crying and rocking back and forth. She further testified that when she asked him what was wrong, he responded, "Oh, mom, I had to be sucked off last night before I can [sic] even come home."

It is this statement to which defense counsel objected. However, the court ruled that the statement was admissible as an excited utterance. The jury ultimately convicted defendant of first-degree criminal sexual conduct. Defendant appealed, challenging among other issues, the admission of the hearsay statement. Further, defendant claimed that he was denied his Sixth Amendment right to counsel, because, at the time of trial, his attorney had been charged with a criminal offense in the same county.

The Court of Appeals affirmed the conviction for different reasons. It held that the statement did not qualify as an excited utterance, but that the admission of the statement was harmless error because it was cumulative, given complainant's testimony. With respect to the effective assistance of counsel argument, the Court found no conflict of interest because the judge and the prosecutor involved in counsel's case were not the same as those in defendant's case. This Court granted leave limited to these issues. 454 Mich. 872, 562 N.W.2d 781 (1997).

II

We generally review a trial court's determination of evidentiary issues for an abuse of discretion. People v. Adair, 452 Mich. 473, 482, 550 N.W.2d 505 (1996), citing People v. Perkins, 424 Mich. 302, 308, 379 N.W.2d 390 (1986). Close questions arising from the trial court's exercise of discretion on an evidentiary issue should not be reversed simply because the reviewing court would have ruled differently. People v. Bahoda, 448 Mich. 261, 289, 531 N.W.2d 659 (1995), quoting People v. Golochowicz, 413 Mich. 298, 322, 319 N.W.2d 518 (1982). The trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion. Id.

MRE 803(2) defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The rule allows hearsay testimony that would otherwise be excluded because it is perceived that a person who is still under the "sway of excitement precipitated by an external startling event will not have the reflective capacity essential for fabrication so that any utterance will be spontaneous and trustworthy." 5 Weinstein, Evidence (2d ed.), § 803.04, p. 803-19.

In People v. Straight, 430 Mich. 418, 424, 424 N.W.2d 257 (1988), this Court cited the two primary requirements for excited utterances: 1) that there be a startling event, and 2) that the resulting statement be made while under the excitement caused by the event. Straight clarified People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979), which had split the second requirement into two inquiries: whether the statement was made before there was time to...